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HCAL 1667/2025
[2025] HKCFI 4827
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1667 of 2025
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BETWEEN
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Pinku |
Applicant |
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and |
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The Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be dismissed.
THE APPLICATION
1. By a consent order dated 2 September 2024, the decision of the Torture Claims Appeal Board dated 2 August 2018 was quashed and the applicant’s appeal against the Director’s Decision dated 14 June 2017 (“the Director’s Decision”), dismissing his non‑refoulement claim was ordered to be re-assessed by another constituted Board. This was duly done and another constituted Torture Claims Appeal Board dismissed the applicant’s appeal by its Decision dated 23 June 2025 (“the Board’s Decision”)
2. By Form 86, the applicant applies for leave to apply for judicial review of the Board’s Decision.
3. The applicant did not ask for a hearing.
4. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
5. The applicant is a national of India. He attempted to enter Hong Kong on 14 February 2016 but was refused permission to land. During the transit of repatriation to Mainland, he escaped. On 23 December 2016, he surrendered himself to the Immigration Department. On 24 February 2017, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his wife’s family because they disapproved of the marriage.
6. According to the applicant, he started dating Paramjit in around 2008. One day in early 2015, he received a phone call from Paramjit’s brother who inquired the applicant’s identity. At that time, the applicant realized that Paramjit’s family suspected that she was in a relationship and kept her under close monitoring. On 5 January 2016, knowing that Paramjit’s family would disapprove of the marriage, the applicant eloped with her.
7. A few days later, the applicant and Paramjit were located by her family. They assaulted the applicant and threatened to kill him whenever they saw him. The applicant later received medical treatments and his father also reported the assault to the police. Nevertheless, the police refused to assist. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001667_2025_files/the_Board's_Decision.pdf.
The Director’s Decision
8. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
9. By way the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the past events indicated that the level of risk of harm upon refoulement was low [12]-[15]; (ii) state protection would be available to him [16]-[22]; and (iii) internal relocation was also a viable option [23]-[27].
10. As mentioned in paragraph 1, the appeal was re-assessed by the Board.
The Board’s Decision
11. On 12 May 2025, the Board conducted a hearing for the applicant’s appeal. The applicant had given oral evidence and answered the Board’s questions.
12. Having considered the evidence, the Board found the facts below.
(1) The applicant’s evidence was lacking in detail, exaggerated, inconsistent with his account in other settings, and/or simply defy logic. [23]
(2) The Board was unable to find the centerpiece of his story. [24]
(3) State protection will be available to him if he returns to India. [38]
(4) It will not be necessary for him to relocate. However, if it is necessary for him to do so, he may relocate to Kolkata and start a new life there. [41]
13. For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
14. The applicant has filed Form 86 dated 23 July 2025 for leave to apply for judicial review of the Board’s Decision.
15. In the applicant’s affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.
DISCUSSION
16. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
18. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”
19. The applicant has not raised any valid reason to challenge the Board’s Decision.
CONCLUSION
20. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
21. Accordingly, I dismiss the applicant’s application.
Dated the 22nd day of October 2025
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(Klein Tse)
for Registrar, High Court
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Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 22/10/2025
Pinku
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 22/10/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7844(R)
Director of Immigration
Putative Interested Party’s ref. no.:
INCL-0004219-16 (F)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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